The lawful access debate continued for a third day on Friday with Bloc MP Claude DeBellefeuille asking Patricia Lattanzio, the Parliamentary Secretary to the Minister of Justice, a critical question: why has the government chosen “the lowest possible threshold for obtaining information, that of reasonable grounds to suspect, rather than the more stringent threshold of reasonable grounds to believe.” She added that she did not understand the choice and would like a clear answer (I focused on this issue in a previous post). In keeping with the government’s discouraging defence of lawful access thus far (my posts on day one and day two of debate) Lattanzio’s response went for deception rather than clarity. After noting that reasonable grounds to suspect already appears in parts of the Criminal Code, she offered the government’s substantive defence of the lower threshold in a single sentence: “We also think that ‘reasonable grounds to suspect’ is higher than the threshold of mere suspicion.” The problem is that mere suspicion isn’t a threshold for search at all, but rather the standard the courts point to when a search is unconstitutional.

Supreme Court jurisprudence on search and seizure is consistent on the issue. In R. v. Kang-Brown, it held that a police hunch could not ground even a sniffer-dog screening. In R. v. Chehil, Justice Karakatsanis explained that reasonable suspicion must rest on objectively ascertainable facts capable of independent judicial scrutiny and warned against diluting the standard by accepting grounds that amount to little more than subjective intuition. The entire point of the reasonable suspicion standard is to place mere suspicion on the wrong side of the Charter line.

A defence of the proposed threshold as “higher than mere suspicion” therefore says almost nothing. The government’s position, as articulated by one of its lead spokespersons on Bill C-22, amounts to an assurance that the bill does not authorize anything plainly unconstitutional. That is not an argument for the threshold chosen but rather a restatement of what the Charter already requires.

The question DeBellefeuille actually asked was why the government chose the lower of two real standards in Canadian law. Reasonable grounds to believe is the standard that governs the general production order under s. 487.014 and has been applied to subscriber information for more than a decade since the Supreme Court’s decision in R. v. Spencer, which recognized that subscriber information linked to online activity attracts a reasonable expectation of privacy. As I noted last month, Bill C-22 lowers that threshold. The bill is better than Bill C-2 on warrantless access, but the tradeoff is a reduction in the standard for judicially authorized access to information the Supreme Court has emphasized carries a reasonable expectation of privacy. Holding itself to an unconstitutional standard says a lot about the government’s inability to defend the lower threshold.

Further, Lattanzio is not a backbench MP reaching for a talking point. She is the Parliamentary Secretary to the Minister of Justice, a lawyer, and the former chair of the National Security and Intelligence Committee of Parliamentarians whose report the government has cited in support of the bill. If that is the best defence the government can offer for lowering the evidentiary standard for police access to subscriber information, the provision does not have a defence. Justice Minister Sean Fraser used Friday’s Charter anniversary to highlight his concerns about provincial use of the notwithstanding clause. Before worrying about how others respect the Charter, perhaps he should ensure that his bill and his colleagues do the same.